My Kindle ate my homework: lawsuit filed over 1984 deletion

A suit filed on Amazon's home turf claims that the company's recent deletion …

Amazon attracted a lot of unwanted attention when it used its Kindle e-book reader's always-on network connection to delete copies of works by George Orwell that had been sold without a proper license. The company has since apologized to its users and promised that it will never happen again, but those steps aren't enough for some. A lawsuit has been filed in Seattle that seeks class action status for Kindle owners and Orwell readers, alleging that Amazon has done everything from committing computer fraud to eating a high school student's homework.

One of the plaintiffs, Justin Gawronski, has a compelling story about his experience with Amazon's memory hole. Apparently, he was reading his copy of 1984 as a summer assignment for school, and had been using one of the Kindle's selling points—the ability to attach notes to specific parts of the e-book text—to prepare for his return to school. Since he was actively reading the work when Amazon pulled the plug, he actually got to watch the work vanish from his screen. He's left with a file of notes that are divorced from the text that they reference. A second plaintiff is named, but he just seems to have gotten poor customer service when he complained about the deletion.

But the firm that filed the suit clearly expects that these two individuals are hardly alone, and it seeks class-action status, with three different degrees of harm. The first is simply Kindle owners, who have allegedly seen their device's resale value drop due to Amazon's actions. The second is those that lost a copy of a digital work, and the final class are those, like Gawronski, that have put effort into annotating a work, only to see the underlying text vanish.

As we noted in our initial coverage, Amazon's Kindle terms of service seem to indicate that a sale transfers control of the work to the purchaser, and the suit quotes the relevant portion: "Amazon 'grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times.'" The fact that these copies obviously cannot be viewed an unlimited number of times, the suit alleges, constitutes a violation of contract.

The actual deletion of the work comes in for the most criticism, however. The introductory portions of the suit actually quote David Pogue, who apparently compared Amazon's actions to Barnes & Noble sneaking into private homes to remove books, leaving a check on the table. Since the Kindle is a standalone computer, the suit considers Amazon's actions computer fraud under the relevant statutes, and alleges that the actions constitute trespass to chattels. Finally, the actions are alleged to violate Washington State's consumer protection laws, which are generally considered fairly pro-consumer.

If the suit survives long enough for some decisions to be made, there are some interesting issues at play here. The suit clearly intends to treat Amazon's terms of service as a contract, even though they're generally vague, and don't specifically address the factors at play here (Amazon sold a work it didn't actually have the rights to). The same "invasiveness" that allowed Amazon to delete the work also powers some of the Kindle's more compelling features, like near-instant access to works and synchronization across devices.

Still, the largest class defined in this suit is that constituting all Kindle owners, and the allegations there center around the charge that the mere fact that deletions could happen lowers the value of the Kindle as a device. But Amazon seems to have been indicating that this won't be the case going forward. Jeff Bezos has apologized for the deletions, and Amazon has gone on record as saying they won't happen again in response to similar problems. But Amazon has declined to specify whether there are any circumstances under which the company might delete works in the future (and we have asked that specific question of the company), nor has it specified how it will handle improperly licensed works in the future.

If nothing else, the suit may ultimately force the company to get a bit more specific about what, precisely, its policies are.

"But Amazon has declined to specify whether there are any circumstances under which the company might delete works in the future"

That's precisely the point that I don't like and hope will be addressed here. As far as I am concerned they should never, ever, ever be able to delete what has been downloaded any more than they can come into my house and take a book that I bought.

...the allegations there center around the charge that the mere fact that deletions could happen lowers the value of the Kindle as a device.

I'm not sure about everyone else, but it has definitely reduced the value in my opinion - I was seriously considering the DX, but after this happened, it pretty much made the Kindle worthless. I'd only consider using it if I was given it free, and then I don't think I'd actually buy any books - just use it for free ebooks.

originally posted by punsentinel:at what temperature does the kindle burn?

I dunno, say, ~233 °C?

...what?

ha.ha.

Of course, that would have been funny had that been one of the books deleted.

Yes, but it is quite hilarious that they deleted the Orwell books. You couldn't have written this in a story because people would say it is too incredible a coincidence. If they had deleted some no-name book like "Mary's Mud Pies" this would have been a footnote, not a major news story.

Amazon will lose more money in lost sales than from this lawsuit, if it gets anywhere. What are the losses? One homework assignment? A 99¢ book?

But customers have lost the illusion that having this device is like carrying your own personal library. Talk to Disney--the mental image of a product is worth billions.

They have to realize that their publishers are not their customers, and just announce that they will take the book deletion capability out of their software and that it not only will never, ever happen again, but that it won't even be possible.

I'm not sure which is more exciting: the prospect of Amazon getting punished severely in the marketplace for this ham-handed treatment of their customers, or the revival of the venerable cause of action for "trespass to chattels"!

You'd think they would have learned something from Sony's little root-kit-in-the-music-CD faux pas of a few years ago.

While I doubt that there has ever been a class action law suit that wasn't a cashgrab by lawyers - outside of the movies - I kind of like this one. From the beginning, I have hated everything about the Kindle process, because it takes such great intentions and cripples them in the name of copyright. I want to see Amazon burn for this, at least a little.

I'm still a bit surprised that Amazon didn't simply bite the bullet and pay the actual owners of the rights to the works for each of the unauthorized copies, and send users a note that while the work they purchased had been found to be unauthorized, Amazon had made sure the compensate the appropriate real owner.

It could have been a bit of nice positive PR if spun the right way, and how different would the cost have been to Amazon (one assumes they didn't get money back, at least not immediately, from whoever was illicitly selling these, so they paid back users out of pocket), directly?

Instead we have this. Hopefully Amazon finds a way to save face in all this while fixing the platform, because it's not a bad platform in all, but issues of this nature could easily sink it for many. Hopefully this form of pressure leads to some real change, because that doesn't seem to have happened yet. Simple repayment for the purchase doesn't seem adequate when you've actually removed something (versus not having yet delivered, such as in the case of pre-orders) from someone who made that purchase in good faith. The problems to come of this should have been obvious miles away, and it's one gaping hole in Amazon's foresight.

Originally posted by Zoolook:Yes Amazon were wrong and should hang their heads in shame... but a lawsuit? FFS, get a life.

I disagree completely. I think this lawsuit is important. I don't want to see Amazon get hit with a multimillion dollar fine or anything, but if nothing else I think they should be forced to lay out exactly under what circumstances this could ever happen again. I also think this could have important relevance in all forms of media as we head further into digital distribution.

Originally posted by kaitliac:I'm still a bit surprised that Amazon didn't simply bite the bullet and pay the actual owners of the rights to the works for each of the unauthorized copies, and send users a note that while the work they purchased had been found to be unauthorized, Amazon had made sure the compensate the appropriate real owner.

That's exactly what I was thinking. Halt future sales, and pay up to ensure that people who already bought it can keep it. The customers aren't the ones who screwed up here, they do not deserve to be punished.

Originally posted by kaitliac:I'm still a bit surprised that Amazon didn't simply bite the bullet and pay the actual owners of the rights to the works for each of the unauthorized copies, and send users a note that while the work they purchased had been found to be unauthorized, Amazon had made sure the compensate the appropriate real owner.

A possible outcome of this strategy would that Amazon, having done the noble deed you just outlined, would have set precedent. So when someone else sells unauthorized works via Kindle Store, Amazon would end up on the hook to buyback all of sold copies of that one too. Or look bad for being nice to one group of customers ("we bought your books back for you!") but not-so-nice to the next group of customers. Losing proposition for Amazon.

I am NOT saying Amazon should have deleted the unauthorized copies from people's Kindles as they did. That's clearly wrong. But Amazon shouldn't have to buyback every wrongfully sold e-book. No, the people who knowingly infringed someone else's copyright should be made to do that.

So the next time this happens (and it will happen again), the only option I can see for Amazon is to sit tight, and say to the aggrieved party (owners of the unauthorized work) "We can't do anything unless you make us. If you came to us with a court order demanding deletion of the unauthorized works, then we'd have to do it." Even doing this would make Amazon look like the bad guys to some. Because they 'helped' sell the unauthorized copies, victimizing the copyright holders - and now won't help the victims.

Easy enough to fix, just require Amazon to ship a printed backup copy of each eBook they sell. Nicely bound, with a colorful dust jacket, of course. You know, just in case. Matter of fact, you could offer a cheaper edition that omits the electronic copy. Hey, can I patent this idea?

Originally posted by Zoolook:Yes Amazon were wrong and should hang their heads in shame... but a lawsuit? FFS, get a life.

A lot might hang on this. Big Content are desperate to change all the old rules of purchase and ownership in their favor: There's no doubt whatever that if, say, the RIAA's members could sell all music with this sort of electronic bungee cord attached to it, they would. It's the ultimate DRM.

quote:

Originally posted by adminfoo:A possible outcome of this strategy would that Amazon, having done the noble deed you just outlined, would have set precedent. ...

No, they'd've been following precedent. Analogous situations have happened in the brick-and-mortar world in the past, and stores have handled the situation just as OP describes. Also, there are such matters as doing what's right, pleasing one's customers, and so on. Not all of life is a game of legal oneupmanship. Sheesh.

quote:

Originally posted by wordsworm:I really have to wonder - what would have taken longer: rereading and re-annotating 1984 or going through this retarded lawsuit?

I'd award the kid $20 -- but the rest of the suit deals with much more serious problems. There's nothing "retarded" about freedom of property.

Doesn't Amazon have control over the Kindle store? Would proof of ownership be that difficult to prove/obtain? Hell, this was "1984" shouldn't have taken more than 4 phone calls to make sure it's legit.

If anything, Amazon should have apologized, refunded the money and given everyone affected a $100 credit to the Kindle store. They get loads of good press because they shelled out a bunch of money. Everyone is happy because they just got $100, which they'll eventually give back to Amazon. They've probably blown thru that amount in legal fees on this thing already.

Originally posted by stephenb:Doesn't Amazon have control over the Kindle store? Would proof of ownership be that difficult to prove/obtain? Hell, this was "1984" shouldn't have taken more than 4 phone calls to make sure it's legit.

If anything, Amazon should have apologized, refunded the money and given everyone affected a $100 credit to the Kindle store. They get loads of good press because they shelled out a bunch of money. Everyone is happy because they just got $100, which they'll eventually give back to Amazon. They've probably blown thru that amount in legal fees on this thing already.

These class action suits are usually initiated by lawyers, it's unlikey the Kindle users paid any fees. I still have two uncashed checks, my portion of settlements from two California class action law suits against Microsoft, they're both just for a few dollars, funny thing is, although I lived in California for a short while, I never signed on to any law suit there or anywhere else, the lawyers must of got my name off a list of people who bought stuff from Microsoft, one lawsuit was even over a version of MS Office I'd never even owned. Now why would they do that? Well, one check I recieved is for $14 USD, now let's imagine the lawyers signed on one million people and got 10% of any monetary settlement, that's 1.4 million USD. a check worth cashing indeed.

This whole Kindle mess is unfortunate, It's easy to sympathize with those who had the books deleted without even a warning. My experiences dealing with Amazon have all been good, for them to have handled the problem the way they did seems a bit out of character to me. One thing is for sure, not much chance they'll be grabbing anything out of anyone's Kindle again, suit or no suit.

Originally posted by stephenb:Doesn't Amazon have control over the Kindle store? Would proof of ownership be that difficult to prove/obtain? Hell, this was "1984" shouldn't have taken more than 4 phone calls to make sure it's legit.

Precisely. They sell books. They sell eBooks. Their responsibility for determining whether the "publisher" truly is the publisher and has the right to sell the material is identical in both cases. Why should they be diligent in one case and allowed to be careless in the other?

...the allegations there center around the charge that the mere fact that deletions could happen lowers the value of the Kindle as a device.

I'm not sure about everyone else, but it has definitely reduced the value in my opinion - I was seriously considering the DX, but after this happened, it pretty much made the Kindle worthless. I'd only consider using it if I was given it free, and then I don't think I'd actually buy any books - just use it for free ebooks.

I doubted I would ever obtain a Kindle, but now I certainly do know: No!

This is not only like the rootkit-in-a-music-CD, but also like the diappearing iPhone applications. No iPhone in My future, either.

quote:

Originally posted by ReaderBot:While I doubt that there has ever been a class action law suit that wasn't a cashgrab by lawyers...

Many of the lawyers who work on these things receive thirty percent of nothing! "Cashgrab" or not, these lawsuits---to be exact the thought of them---tends to keep companies from doing these things. Except that Apple failed to learn from Sony, and Amazon dotcom failed to learn from the two of them!

This comment was edited by Master David Goodmen on August 01, 2009 05:27

These class action suits are usually initiated by lawyers, it's unlikey the Kindle users paid any fees.

I meant Amazon paid that much in legal fees. But I agree that many class action suits are nothing more than cash grabs for lawyers. Hell, I had coupons from Iomega for the Zip drive class action. I could get $15 off a $150 drive from Iomega, or I could just buy one elsewhere for $99. But all the lawyers got millions in cash.

That's why this is a good deal for them. Very few people are going to take place in a class action lawsuit if they don't feel that they've been wronged. You will have a few, but not enough for the lawyers to risk it.

And as I said, it's a huge PR win for Amazon. They look bad for the fact that things got taken away, but people would get more than compensated.

Originally posted by adminfoo:A possible outcome of this strategy would that Amazon, having done the noble deed you just outlined, would have set precedent. ...

No, they'd've been following precedent. Analogous situations have happened in the brick-and-mortar world in the past, and stores have handled the situation just as OP describes. Also, there are such matters as doing what's right, pleasing one's customers, and so on. Not all of life is a game of legal oneupmanship. Sheesh.

I'm interested in this precedent you cite. Got a link to these analogous brick-and-mortar situations?

I have no idea how you can construe what I said as "one-upmanship". I suggested that Amazon shouldn't have to "do what's right" on behalf of whomever fraudulently placed 1984 on sale within the Kindle store. The fraudulent seller of that e-book should. (Keep in mind, Amazon are the broker here - not the seller.)

Originally posted by stephenb:Doesn't Amazon have control over the Kindle store? Would proof of ownership be that difficult to prove/obtain? Hell, this was "1984" shouldn't have taken more than 4 phone calls to make sure it's legit.

Precisely. They sell books. They sell eBooks. Their responsibility for determining whether the "publisher" truly is the publisher and has the right to sell the material is identical in both cases. Why should they be diligent in one case and allowed to be careless in the other?

How much effort should Amazon have to expend on doing these checks for each book that enters the Kindle Store? Four phone calls you say? They have 300K titles in the store now. Does this mean they should have mad 1.2 million phone calls to verify them? Assuming 5 minutes per call (a very low average I'd bet), that's 6 million minutes on the phone. Hmm. Figuring a 40 hour workweek, and 50 workweeks per year, we've just obligated Amazon to 50 man-years of effort. Just for *making* the phone calls - it ignores the costs associated with long distance fees, providing all these copyright-checkers with phones and desks and parking spaces, etc, etc. That's gonna raise the price of our e-books a bit, eh?

When Amazon *could* simply have the submitting e-book (or paper book) seller certify under penalty of punishment under applicable law that they have acquired appropriate distribution rights for the work. Not sure what makes you suggest that Amazon do "more" due diligence on paper books than e-books.

@kaitliac"I'm still a bit surprised that Amazon didn't simply bite the bullet and pay the actual owners of the rights to the works for each of the unauthorized copies, and send users a note that while the work they purchased had been found to be unauthorized, Amazon had made sure the compensate the appropriate real owner."

Not sure if Amazon did try this but it would not have worked since Orwell's family refuses to sell 1984 as a ebook. Also it seems that the publisher who was selling this title via Amazon was also selling 2 other titles without having North America distribution rights. But I think these were not removed because Amazon got the money from the publisher and sent it to the correct rights owner.

My Opinion: I think the lack of a ebook by the Orwell family is stupid as it just leads people to get it from Australian sites where the book is no longer under copyrights. I think Amazon figured that it would be cheaper to refund their customers than deal with a lawsuit with the rights owner which can come out to be 22k per title sold if the latest RIAA winnings were to be used.

I like my Kindle 2 and have purchased 60% of my books outside of Amazon's store (Pragmatic has the best ebook policy). If Amazon ever removed any book from machine I will most likely disable the wireless and at that point it will become the same as my Sony Reader I had before this (With some extras that Sony doesn't offer). I figure in 2 more years I might be purchasing a new one and passing this off to a family member by then someone will have released something similar to the Kindle.

Originally posted by Vipre77:Anyone know how many users were actually affected by this? I mean, how many people are still buying copies of 1984?

It's on some High School reading list. I actually thought about re-reading it since I first read it around 1984 but my list of pending books is too long.

What I find ironic was not that the book was removed by means of "Big Brother" but that the rights owner (Orwell's Family) needed "Big Brother" to preserve their "Paper Edition Only" stance by removing the ebook.

Originally posted by scotts13:Easy enough to fix, just require Amazon to ship a printed backup copy of each eBook they sell. Nicely bound, with a colorful dust jacket, of course. You know, just in case. Matter of fact, you could offer a cheaper edition that omits the electronic copy. Hey, can I patent this idea?

Nope, I've said it before on this blog. Sorry. Of course, prior existence doesn't stop people from copyrighting things, and those patents being accepted...

Anyway, this is what I've thought they should have done since the start. My idea is similiar to the "Digital Copy" thing they're doing for Blu-rays nowadays. You buy a dead tree book, and for a small fee (say $5 or $10), they send you a digital copy to your Kindle as well. Purely optional of course, you'd still be able to buy the dead tree book or ebook separately if you so chose. You'd have already paid for all the fixed costs of the book when you bought the dead-tree version. There is the issue of how much it costs to convert a book to ebook format and maintain the ebook product; I don't know the price, but I can't imagine it's that expensive. I could be wrong, though. It would be AWESOME for graduate students like myself, where you really don't want your professional library tied to one service, but at the same time, it would be incredibly useful to have it at a touch of a button. I really think it would open up their market to people that like the idea of Kindle, but don't want to sacrifice their physical libraries in the process. They'd have an instant Kindle sale in me, at very least.

Originally posted by scotts13:Easy enough to fix, just require Amazon to ship a printed backup copy of each eBook they sell. Nicely bound, with a colorful dust jacket, of course. You know, just in case. Matter of fact, you could offer a cheaper edition that omits the electronic copy. Hey, can I patent this idea?

Nope, I've said it before on this blog. Sorry. Of course, prior existence doesn't stop people from copyrighting things, and those patents being accepted...

Anyway, this is what I've thought they should have done since the start. My idea is similiar to the "Digital Copy" thing they're doing for Blu-rays nowadays. You buy a dead tree book, and for a small fee (say $5 or $10), they send you a digital copy to your Kindle as well. Purely optional of course, you'd still be able to buy the dead tree book or ebook separately if you so chose. You'd have already paid for all the fixed costs of the book when you bought the dead-tree version. There is the issue of how much it costs to convert a book to ebook format and maintain the ebook product; I don't know the price, but I can't imagine it's that expensive. I could be wrong, though. It would be AWESOME for graduate students like myself, where you really don't want your professional library tied to one service, but at the same time, it would be incredibly useful to have it at a touch of a button. I really think it would open up their market to people that like the idea of Kindle, but don't want to sacrifice their physical libraries in the process. They'd have an instant Kindle sale in me, at very least.

++ to this. I'd buy a Kindle in a heartbeat if they did it like this. I already use Kindle on the iPhone and have re-bought copies of some books that I bought from Amazon already, just because reading it in a pinch on the iPhone sure beats trying to retrieve the book from where it's stashed.

Then again, I could see the potential for abuse here. Some people would use the service to buy books only to resell the dead-tree version for monies.